Judicial Separation (also known as a legal separation)

Judicial separation legal advice family law divorce Ireland Berwick Solicitors GalwayA decree of judicial separation removes the obligation on a couple to co-habit. Where a marriage has irretrievably broken down, many couples opt for a judicial separation to sort matters between them before they apply for a divorce. It is useful where there are contentious matters surrounding access and maintenance regarding children, the transfer of property and the extinguishment of succession rights, for example. A couple must be living separate and apart for four out of the previous five years before they can apply for a divorce. That period can be lengthy for many couples and so, a judicial separation is helpful in resolving matters until a divorce can be applied for.

Either party in a separating couple can apply for a judicial separation. Before you can bring an application, the court must be satisfied that there are grounds for the application, the couple has been advised about counselling and mediation and also that proper provision has been made for the welfare of any dependents.

An application for a judicial separation must be based on one of the following six grounds:

  • One party has committed adultery
  • One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them
  • One party has deserted the other for at least one year at the time of the application
  • The parties have lived apart from one another for one year up to the time of the application and both parties agree to the decree being granted
  • The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted)
  • The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.

The latter is the most common one that we see in courts as it does not put fault on either party.

Once the court is satisfied that the above are met, and that proper provision is made for the dependant spouse and children, it will grant a decree of judicial separation.

All hearings are in private and where possible, it is encouraged that the terms of the judicial separation are agreed between the parties and then submitted to the court, particularly where there are few or little contentious issues.

Separation Agreement

A separation agreement is an agreement where both parties agree to separate from each other (either by themselves, through mediation or through negotiation by their legal representatives). The separation agreement normally deals with all the issues between the parties such as the family home, maintenance, access for children, custody of children, pensions, etc.

The main benefit of concluding a separation agreement is that you can avoid a lengthy and often divisive court hearing and a separation agreement is just as legally binding as a court order.

The agreement will cover the agreement to separate and live apart in addition to issues such as property, maintenance and financial provisions, guardianship, access and custody of children, pensions, taxation and succession rights.

Where you enter into a separation agreement with your spouse, you generally cannot subsequently issue legal proceedings seeking a judicial separation but you can make an application for divorce, subject to you meeting the other required criteria for divorce. That said, it is always open to either spouse to bring an application to review maintenance payments both for the other spouse and for any children and similarly neither party can be prevented from bringing an application to deal with issues in relation to custody, access or guardianship.

The separation agreement is binding on the parties but if either one of them seeks a divorce, then the court should have regard to the terms of a separation agreement but fundamentally the court has to be satisfied that proper provision has been made for all relevant parties before they will grant an order for divorce.

Costs for legal separation and divorce in Ireland

If your case is very straightforward, no pensions are involved and everything is agreed between you and your spouse before seeking our services, then it is likely that your costs for a divorce or legal separation will be very reasonable. The more complicated and time consuming your case is, the more it will cost. Every case is different. At our first meeting, we give our clients an estimate of the likely legal costs based on the various scenarios which might occur. We believe that legal costs should be transparent and that clients should be kept updated on legal fees at all stages of proceedings. Unlike some firms, we do not believe in litigating cases simply to drive up legal fees. Where cases can be settled and it is in your best interest to settle, we will advise you to do so. It is, of course, always your decision as to whether to settle or not. We believe in bringing value to clients and achieving an excellent result so that clients can get on with their lives.

If early agreement is not possible then your costs will increase. Going to court will increase costs further. While some cases are straightforward, many cannot be resolved with a settlement meeting or entering into communication with the other side.

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Divorce & Separation – Frequently Asked Questions

What is the difference between being divorced and being legally separated?

If you are divorced you are free to marry again. If you are separated you are still married and cannot remarry. However, a legal separation is important as it deals with all the financial issues and means that you can get on with your life relatively soon after your marriage has ended. Otherwise, you must wait 4 years after the marriage ends before you can seek a divorce.

Do I need to go through a judicial separation before applying for a divorce?

No, once you are four years separated you may start divorce proceedings.

What about mediation?

Mediation is where an independent third party helps both parties come to agreement about difficult issues such as custody and access to children, division of assets, maintenance payments and pensions. The aim of mediation is to help the couple resolve matters in a constructive way so that the interests of both parties and in particular those of their children are met. If a couple can reach agreement in mediation, those terms can then form part of a consent agreement. This can then save couples thousands of euro in legal fees where they can reach agreement.

Can I do a DIY divorce?

Under the law there is no obligation on either party to have a solicitor when seeking a divorce in Ireland. However, in cases where divorce is contested or there are issues over assets, or arrangements concerning the children then it is advisable to seek legal advice before bringing an application. Even if you have decided you do not want to retain a solicitor, it is best to seek legal advice. We often come across clients who have drafted their own legal papers and consent terms many years later and there have been difficulties in same.

Therefore, we recommend that at the very least that you have each party get a solicitor to review the terms of separation or divorce before you agree to same. Pensions are highly complex and it is important to seek advice on these before pension adjustment orders are made. Remember that in a DIY divorce you are responsible yourself and if it goes wrong the consequences rest with you alone. It is always advisable to seek the advice of a family law solicitor and/or family law barrister first.

Can I do a divorce online?

In Ireland, the current system does not allow applicants to file online for a divorce. You must submit the paperwork through the Circuit Court office.

Where is the divorce court?

Divorce hearings take place at the local court.

How long does the divorce process or judicial separation process take?

There are thousands of people in Ireland waiting to lodge applications for a divorce or judicial separation. As it is, efforts are being made to provide extra judges, more courtrooms, additional lawyers. As a result, you may still have to wait many months before your case comes up for hearing. In addition, should your spouse try and drag their feet during the process or delay things, that can impact on the time it takes to get a divorce or separation.

However, where there is a good chance of settling a case or where the terms have been agreed between the parties, the process can move quickly. We believe in moving things along as swiftly as possible to avoid hefty fees for clients. A fully contested divorce usually takes on average approximately 9 months. Where the parties are not contesting the divorce but merely working out financial arrangements and child arrangements, then 6 months is more common.

Can I get divorced in Ireland if I married abroad?

Yes, anyone who resides in the Republic of Ireland can file for a divorce in Ireland.

What do I do in the meantime while I am waiting for my divorce?

While waiting for a divorce or judicial application to be heard, clients usually want to get on with their lives. For those who are long estranged, very often things can be amicable or the process can move along in the background. For those who are living together or where there may be maintenance, access or domestic violence issues, either spouse is entitled to apply for interim remedies including orders for periodical payments (maintenance), custody of children, safety or barring orders and an order entitling one spouse (normally the wife with any children) to sole occupancy of the family home. We can advise on all aspects of this.

I want to ensure I get the family home – how can I get this?

Often when discussions about divorce arise, there is an assumption that the family home is the biggest asset and parties to a divorce may place a major focus on the family home. However, in reality, and certainly given property market values of the past few years, a pension may be the most valuable asset.

Typically the parties and the courts will deal with the pension itself, the pension lump sum, spousal death in service benefits and spousal death in retirement benefits. It should be noted that if one spouse has a substantial pension and the other spouse has none, perhaps because he or she worked in the home, the court can order that part of the spouse’s pension be paid to the other spouse or to a dependent child. Alternatively, part of the pension fund could be split and put into another pension fund in the name of the second spouse. This is known as a pension adjustment order.

Some clients, particularly those working for government organisations or large companies where there are often good pension plans in existences, may find that they have sizeable pensions worth significantly more than the family home. In such cases, those clients may look to protect their pension in the division of assets. Indeed, there are cases where, as part of a divorce settlement, a spouse has kept the pension and given the other spouse the family home.

The courts attempt to separate the parties in as fair a manner as possible and try to insure that proper financial provision has been made for both the children and the parents. Before making a pension adjustment order, a court will consider all of the finances available to the parties and if it refuses to make a pension adjustment order, it may decide to reflect the value of the pension fund in the division of other marital assets.

Once granted, a pension adjustment order is then served on the trustees of the pension scheme who will then amend the pension in favour of the other spouse.

The danger in not dealing properly with pensions during a divorce is that the problem may not become apparent until such time as someone retires. There have been cases where parties have divorced and remarried, yet when one party retires, it transpires that their former spouse and not their new spouse is the person entitled to the pension or the death in retirement benefit.

As pensions are very complex, it is strongly advised to consult with a solicitor and a pension specialist before negotiating any family law settlement.

What does the divorce process involve?

The Court hearing is in private and only the parties to the judicial separation or divorce are allowed into the courtroom with their legal team. If there is a consent agreement / everything has been worked out in advance, the hearing is usually brief. If the cases goes to full hearing i.e you cannot agree the terms of the separation or divorce, you will be both asked to give evidence and you may be cross examined. You must disclose all evidence and swear on oath. Ireland operates a no-fault based jurisdiction so, if a couple have fulfilled the legal requirements, either partner is entitled to a divorce, however badly they may have behaved.

Will I need a barrister for my divorce or separation?

It depends on the type of case and the circumstances. If there are complicated issues regarding property, access, pensions or maintenance in a divorce or judicial separation, it is usual that a barrister will be retained in a case. Your solicitor will advise you on the facts of your case. In cases where there are complex issues even the most experienced of family law solicitors will bring an experienced barrister on board. You should seek a divorce solicitor who regularly works in the area of family law so that you obtain the best advice possible. This will give you an indication as to how technical the area can get.

I want a divorce – what should I do?

It is advisable to consult with a family law solicitor to obtain advice. A divorce should always be the last resort.

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If you are looking for advice on a family law matter, please contact:

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<div align="center">David Higgins</div>
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David Higgins

Partner

T: (091) 567 545 (Galway)
T: (01) 488 3322 (Dublin)
E: davidhiggins@berwick.ie

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